Freedom to Hate: The Paradox of Censuring Hate Propaganda in the US and Canada

There is a racist misogynist money-grubbing cheeto in the White House who has recently and very publicly expressed his sympathy for White Supremacists and Neo Nazis and his contempt for those who fight them. His influence has spread northward to us, emboldening the most morally repulsive people in Canada to come forward and express their desire to see women ground into submissiveness and visible religious and sexual minorities killed.

When these pathetic excuses for human beings face public censure they always cry “free speech”. This article will look at what free speech protections there actually are in Canada and the United States, the laws governing hate speech and propaganda – if any, and the consequences therein.

As the United States is looking like a hotbed of racism, intolerance, and incompetence, let’s start with them.

Free speech protections fall under the First Amendment of the Constitution which says:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The First Amendment protects a wide range of speech no matter how distasteful, untrue, or hateful. Just about any time a city or state passes a law banning hate propaganda of any kind, a First Amendment challenge is brought to the courts.

The Supreme Court of the United States has sided with the hate-mongering petitioners almost every time. As it stands, you could publish or distribute something saying for example, that women or African Americans are stupid and don’t really deserve well-paying jobs and face no criminal legal consequences that would be upheld in a court of law.

In Canada, the situation is very different.

Though Section 2(b) of the Canadian Charter of Rights and Freedoms guarantees freedom of thought, belief, and expression, the Canadian Criminal Code has a whole section devoted to censuring hate propaganda. The laws in question prohibit public incitement of hatred and the advocating of genocide against an “identifiable group”. The law carries penalties ranging from a fine to between six months to five years in jail. The law calls an “identifiable group”: “any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability.”

The prohibitions on hate speech do have a defense written into them which allows a defendant to beat a charge if they can prove on a balance of probabilities that the statements were true, they in good faith attempted to establish an argument on a religious subject, “the statements were relevant to any subject of public interest” or the person “intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada”.

Our Supreme Court recognizes that laws punishing hate propaganda violate our right to freedom of expression but in R v. Keegstra in 1990 a majority of judges agreed that the violation was justified and therefore constitutional.

James Keegstra was a teacher in Alberta who taught his students that Jews were (among other things) treacherous and child killers. Any students who contradicted his conspiracy theories got their marks docked. He was finally fired in 1982 after four years of complaints. A year later he was charged with promoting hatred. Keegstra was convicted and appealed the conviction.

In their decision, the majority Supreme Court justices said that the law was a proportionally reasonable limit on freedom of expression and that the objective of the law – “to reduce racial, ethnic and religious tension and perhaps even violence in Canada” – was rationally connected to the prohibitions in it.

Keegstra, for his part, remained an unrepentant anti-Semite and holocaust denier until his death in 2014. May he rest in Hell.

Although the United States has no criminal prohibitions against hate speech, there are other ways of censuring hate propagandists. As in Canada, the acts often associated with hate propaganda such as arson, assault, murder, theft, rape, and vehicular homicide are against the law in every state in the union. In addition, victims of hate propaganda can sue for libel, and though lawyers are costly, many in the US will work for the publicity alone.

In Canada, the rules for suing are different as provinces retain jurisdiction over civil law. In Quebec, you can sue for material damages, physical damages – meaning damages to your person, or moral damages – damages to your psyche. The burden of proof is a balance of probabilities and not beyond a reasonable doubt. All you have to do is prove that the hate monger and the propaganda they pushed are at fault for your damages.

Arguments against laws punishing hate propaganda range from the notion that punishing hate speech is being intolerant to the notion that criminalizing hate exacerbates the problem by furthering hate mongers’ narratives of victimhood. While the latter may be true, hate mongers generally adopt a narrative of victimhood regardless of whether there is real persecution or not. With the former, one must look at the paradox of tolerance.

The paradox of tolerance is the notion that part of being tolerant is tolerating intolerance. Historically it’s been proven that tolerance does not necessarily breed tolerance. Tolerance of intolerance all too becomes appeasement of the most evil elements in society, emboldening them further – the lessons of the Second World War and Nazi Germany are the clearest cases of this.

In these troubled times, we need to remember these lessons more than ever, or one day we’ll be the ones run over by a car, or lynched, or gassed.

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